Neutral Citation Number: [2010] EWCA Crim 1931
Case No: 201003925B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
His Honour Judge Shorrock
T20090341
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/08/2010
Before :

LORD JUSTICE LEVESON
MR JUSTICE HOLROYDE
and
MR JUSTICE SPENCER
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Between :

	THE QUEEN	Appellant	
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	SH	Respondent	

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Mr Andrew Edis Q.C. for the Crown
Mr Silas Reid and Mr Richard Doman for the Respondent, SH

Hearing date : 29 July 2010
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Judgment

Lord Justice Leveson : 
1.	On 12 July 2009, at the Crown Court at Woolwich, His Honour Judge Shorrock commenced the trial of this respondent on an indictment containing one count of causing racially aggravated fear or provocation of violence contrary to s. 4(1) of the Public Order Act 1986 and s. 31(1)(a) of the Crime and Disorder Act 1998 and there was a further count (added on that day as an alternative) of causing fear or provocation of violence, contrary to s.4(1) Public Order Act 1986.  The particulars of the first count were as follows:
“[SH] on the 8th day of September 2008 used towards [OA] threatening, abusive or insulting words or behaviour which demonstrated towards [OA] hostility based on [OA]’s membership or perceived membership of a particular racial group, with intent to cause [OA] to believe that immediate unlawful violence would be used against him, or whereby [OA] was likely to believe that such violence would be used.”
2.	The case ended on the following day when, at the close of the prosecution case, the judge made good his previously expressed intention to withdraw the count of racially aggravated fear or provocation of violence from the jury.  Pursuant to s. 58 (2), (4)(a)(i) and (8) of the Criminal Justice Act 2003 (the “2003 Act”), the prosecution immediately formally notified him that his decision would be the subject of an appeal. 
3.	The result was that the ruling was of no effect: see s. 58(3) and (10) of the 2003 Act. In complete disregard of s. 58(11)(b) which provides that where the ruling has no effect, the judge may not take any steps in consequence of it, the judge proceeded to inform the jury of what he had done and, while making it clear that he could not say there was no case to answer on the alternative second count, told them that they could stop the case on that charge (which they did).  He then directed the jury to return verdicts of not guilty in relation to both counts.   He subsequently ordered the CPS to bear all the costs of bringing the prosecution both in the magistrates court and the Crown Court.  
4.	The CPS now seek leave to appeal the ruling that there was no case to answer in relation to the first count of racially aggravated fear or provocation of violence, and also to challenge both the direction to the jury that they could acquit of the alternative offence and the order for costs.  These latter two submissions are complicated, in the first case, by the fact that this second count on the indictment was, in any event, out-with the jurisdiction of the Crown Court and, in relation to the second, by the issue of jurisdiction to appeal a costs order.  In the event, pursuant to s. 57(4) of the 2003 Act, we grant leave to argue each of these issues and we have also sought to deal with a wider argument as to various aspects of the judge’s conduct of the trial as a whole. 
The Course of the Trial
5.	From the outset, Judge Shorrock made plain his clear view of the case, namely, that the allegations were not worthy of trial in the Crown Court.  His first words were “Are we really going to waste the judge and jury’s time on this?”  He asserted that “the Crown Court is not the place to deal with this kind of matter” and when told that the CPS had several times reviewed the case, observed “so what?”  He went on:
“[T]his country is next to broke, we do not enjoy the luxury of being able to spend two days of a judge and jury’s time on this kind of thing.
…[I]f the prosecution want to go ahead with this I cannot tell you whether this will survive a submission and there is a case to answer….  If it does not the Crown will be paying the costs.  Do you want to have a word with those who instruct you?
…
…I feel particularly strongly as a taxpayer that my money is wasted on rubbish like this putting it in front of a jury…”
6.	Mr McNeill, then appearing for the prosecution, did take instructions and made it clear that the trial would go on.  It did proceed but the tone in which it was conducted was set although, until after the case had concluded, no adverse remark about the prosecution was made in the presence of the jury.   
7.	The evidence as it was called was straightforward and can be summarised briefly. The respondent was a regular visitor at his local Jobcentre where, to put it neutrally, there may been have a background of disagreement, if not conflict.  On 8 September 2008, a Nigerian to whom we shall refer as OA (employed as a customer care officer at the Jobcentre concerned with assisting floor workers and providing security) said that the respondent approached him.  He gave evidence that the respondent was angry and coming very close to the podium where he was standing.  He swore at him, threatened to stab him and, on more than one occasion, called him a monkey; he continued to abuse him, going so far as to invite him outside, saying that he would be waiting.  OA reported the matter to his manager who advised that the police should be called.  In chief, OA was taken through the silent CCTV footage and identified the various points at which the events which he described happened. When cross examined, he agreed that the respondent’s ‘body language’ as evident on the CCTV was not that of an aggressive person but he said that his expression did not show calmness.  He did not resile from his evidence and in relation to being repeatedly called a monkey, he said “that part is the great part I can never forget”.  To put this allegation in context, OA made it clear that in his work he was frequently sworn at; he took the threat seriously because there had been five incidents at Jobcentres which were “all stabbing”.
8.	After this evidence, in the absence of the jury, Judge Shorrock again argued about the merits of the case proceeding.  He was aware of the contents of the statement of the next prosecution witness, PB, and indicated that he would assume she would come up to proof.  He nonetheless said:
“The pursuit of this case is a scandalous waste of money.  I am going to withdraw count 1 from the jury whatever happens.  At the moment, I am struggling to find a way to withdraw count 2 as well, I do not think I can….  I do propose to remind the jury that if they wish to acquit this defendant … they can do so.
How anybody doing his or her job conscientiously could possibly have decided that this case was worth bringing to the Crown Court, I simply do not understand…. “ 
9.	It should be noted that the offence with which the respondent was charged in count 1 was triable either way and he had elected trial by jury.  In any event, Mr Doman (then appearing for the Respondent), explained that he and Mr McNeill had discussed the indictment and had understood the counts were alternatives so that if the first count was withdrawn, he did not think the jury could be left simply with count 2.  As we shall explain, counsel were correct in their conclusions but the judge asked “Why not?” and said that he would need some persuading.   He then went on: 
“I am rather hoping that common sense is going to prevail, and, if it does not, as I say, I am going to make this as expensive for those who instruct you [counsel for the Crown] as I can.” 
10.	Once again, Mr McNeill, took instructions.  The decision was that the case should continue and a witness to the incident, in the form of a Jobcentre Plus Adviser, PB, was called.  She gave evidence to the effect that she was alerted by shouting and she spoke to the respondent, telling him to calm down.  She said that he was angry, “very aggressive ... shouting” at OA.  She heard the expression “you black monkey”.  Again, she maintained her account when cross examined.
11.	The remaining prosecution evidence consisted of the respondent’s arrest on 20 February 2009 (it being common ground that the police were called on the day of the incident) and his subsequent interview. He denied raising his voice, denied threatening to stab anyone and denied calling anyone a monkey. On the contrary, he suggested that OA had said to him that he was “that white shit from a few months ago”; OA had threatened him and would “break him in two”.   He said that the witnesses were lying and denied any racist remark although it is clear that some complaint was pursued because he was banned from that particular Jobcentre for a while.
12.	The case for the Crown had then concluded and the judge wasted no time.  He sent the jury out, saying “I wonder if you would be good enough to wait outside just for five minutes.  If it is going to take any longer than that I will let you go, but I do not think it will”.  Without a submission being made, he indicated that he intended to withdraw the allegation of racially aggravated fear or provocation of violence.  He said that he would allow Mr McNeill for the Crown to make submissions “in fairness to the prosecution and to protect myself” although it is clear that his previously expressed determination to withdraw the case and, indeed, the exchange at this time, made such submissions somewhat valueless.  He accepted that there was evidence of fear or provocation of violence but then ruled that there was no case to answer in relation to the racial aggravation; he did not give a formal judgment although in argument he did ask the question of Mr McNeill:
“[O]n your own case, you concede the defendant was angry and that there was personal animosity … As a matter of commonsense, given that background, how can this jury say they are sure that neither of those two elements influenced him but we are sure that he said what he said as a result of being totally or partially motivated by racial hostility?  But it is common sense.”
13.	Mr McNeill sought to explain the different ways in which the offence could be committed and referred to DPP v M (to which we shall return) arguing that if the defendant demonstrated racial hostility, that is enough.  In the light of the judge’s approach, however, he immediately intimated an intention to appeal the withdrawal of the racially aggravated count, giving the appropriate statutory undertakings in the event that leave was refused or that the appeal failed.  
14.	The judge then called the jury back into court and explained that he was withdrawing the first count.  He then went on to say that there was some evidence that would entitle them to convict on the second count and although it would be improper for him to withdraw the case, it was open to them “at any stage during the course of a case” to acquit a defendant and to say that they were not going to be sure of his guilt with regard to uttering threats that made the victim believe that he was likely to be the victim of violence. He invited the jury to consider whether they wanted to hear more and directed that if they did not, at his direction, they could find the defendant not guilty.  He explained that if they did want to hear more, the case would continue, and it would be open to the defendant to give or call evidence if he wished to.  He told them to retire for “two or three minutes” and when they returned said:
“You have had that brief opportunity.  ..  Are there any of you who would like to hear more evidence?  If anybody does, please do not be shy.  I see that you want more – the one behind.  Yes, very well, there we are.”
Although these observations appear to suggest that at least one member of the jury did “want more”, we understand that this was not as it appeared to those present.  Having been directed to find the respondent not guilty on the first count, the jury were asked by the clerk of the court (presumably on direction from the judge): “On count 2, do you find the defendant not guilty?” to which the foreman replied “Yes”.
15.	After the ‘verdicts’, the judge described the case to the jury as “a scandalous waste of taxpayers’ money” and pointed to the jury’s reaction to that observation. . He presumably meant that their reaction suggested they were in agreement with him, although the basis upon which the jury could reach that conclusion is difficult to appreciate.  They could at best have only a general perception of its gravity, which may well not have taken into account either the potentially vulnerable position of persons working in the public service, or the jurisprudential basis of the right to trial by jury.  He sought the attendance of a representative of the CPS to enquire if there was a good reason why the prosecution had not been commenced in such a way that it could have been dealt with in the Magistrates Court, making it clear that if he did not get a satisfactory answer, he was going to direct that the entire costs of the case came out of the CPS budget, the aim of the exercise being to cause embarrassment or difficulty.  
16.	A CPS lawyer did attend and there was a lengthy exchange on the merits of the case and its prosecution.  Judge Shorrock accepted that he could not say that the CCTV contradicted OA although it did not back him up.  The judge expounded his view of the law, saying:
“I understand what the judges in the House of Lords and the Court of Appeal have to say about the theory behind the matter, as it were.  But it seems to me that using one’s common sense ... you have no chance of persuading a Woolwich jury to be sure that he said what he said as a result of hostility towards the man because of his race as opposed to personal dislike or loss of temper or both”
17.	The judge acknowledged that he had “stopped the case legally, it might be said on slightly tenuous grounds” but repeated that there was not “a decent chance of a jury believing that those observations are made because of hostility towards that individual rather than dislike or a desire to humiliate or insult”.  As the lawyer attempted to explain his understanding of the law, Judge Shorrock sought support from the jury’s apparent agreement with his view about the waste of money and said:
“.....let us leave aside the academic debate on the subject.  This comes down to common sense and, as I say, when you have a jury sitting there and one that was saying: “You are absolutely right.  What is this doing here?” Then it is not just a Judge who has an ego that is too big for his head, who is saying: “Why am I supposed to be trying rubbish like this?”
18.	When the lawyer again sought to explain his view of the relevant law (which was highly relevant to the wasted costs jurisdiction upon which the judge was then embarking), Judge Shorrock’s response was “Never mind the minutiae, the academic theory.”  He then sought to formulate the test by which the CPS should decide whether to initiate or continue proceedings in these terms:
“The whole point about a sensible prosecuting authority is that it uses its common sense and says to itself: ‘what are the real relative prospects of us persuading a Woolwich jury that this is what motivated him.’”
19.	Pressed that motivation was not an element of the offence, Judge Shorrock said that it was “a matter of common sense” and that “of course it is” because “that is how a jury is going to look at it”.
20.	The judge then said that he would give the CPS the chance to make written submissions as to costs but without more ado, made an order that the prosecution should pay the entire costs of this case both in the Crown Court and the lower court.  He gave a judgment in these terms:
“I formally find that while I can see that there was a public interest in prosecuting this case because, on the face of it, there was a perfectly tenable case to the effect that the defendant had made some thoroughly offensive, not to say insulting remarks to the complainant.  
But in my judgment, given what is seen on the CCTV footage and applying one’s common sense to how a jury is likely to approach the racial aggravation, there never was a realistic prospect of this case getting home in front of the jury on either limb.  
What should have happened was that this case should have been pursued in the magistrates’ court by virtue of section 4 or section 5 of the Public Order Act.  This is a classic case, in my judgment, of where what is said is what matters and the effect it has on the victim, not why it was said.
In an effort to encourage those who make the decision to prosecute in such cases to be more realistic and to deal with more cases at the lower court, I do say that the prosecution should pay the entire costs of this case both at this court and the lower court.”

21.	When the CPS sought to take advantage of the opportunity specifically offered to make representations both as to the judge’s view of the law (relevant to impropriety) and issues of costs, a reply was sent on behalf of the judge to the effect that he was “not prepared to enter into correspondence with regard to individual cases already decided” and that any dissatisfaction should be ventilated “elsewhere”. 
The Ruling on Count 1
22.	We have observed that the judge did not condescend to a ruling in relation to the question of there being a case to answer (which he had initiated) in relation to the racial aggravation.  He did, however, provide the jury with an explanation which echoes the question which he posed during argument and, on the basis that he was accurately explaining his decision to the jury, must reflect his reasons.  He said:
“There is ample evidence that the defendant used words that were both offensive and insulting towards the complainant.  If such words were repeated over a substantial period of time, then it would be open to you to [conclude] that they were said by a man who was wholly or in part motivated by hostility to the racial group to which the complainant belongs.  
However, this incident was, happily, short lived.  It is also the prosecution’s case that there was bad blood between the defendant and the complainant and that for some reason the defendant was angry at the time of the incident.  It therefore follows that if he said what he is alleged to have said, the defendant may well have been motivated not by hostility to members of the particular racial group that the complainant belongs to but by anger or by personal dislike.  
In the absence of any other evidence as to his state of mind I cannot see how you, the jury, could safely exclude the possibility that temper and/or personal dislike were the motivation for the use of such words if, indeed, they were uttered.”
23.	The absence of formal ruling and the judge’s unwillingness (or at least his failure) to address and deal with the submissions of Mr McNeil means that he did not return to the words of the statute or focus on the words of the indictment.  Thus, s. 28 of the Crime and Disorder Act 1998 (as amended by s. 39 of the Anti-Terrorism, Crime and Security Act 2001) (“the 1998 Act”) defines the meaning of the words racially or religiously aggravated in these terms:
“(1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if—
(a)  at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or
(b)  the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group. …
(3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.”
24.	Mr Andrew Edis Q.C. (who appears for the CPS on this appeal) points to the fact that count one of this indictment had been amended at the start of the trial to make it clear (as is apparent from the Particulars of Offence set out in paragraph 1 of this judgment) that reliance was placed on s. 28(1)(a) (demonstration of hostility) and not on s. 28(1)(b) (motivation by hostility).  Thus, he submits, the offence is committed if the offender demonstrates racial hostility for any reason at all and, indeed, by reason of s. 28(3), whether or not there is some other reason for his hostility.
25.	The difference is illustrated in RG v. Director of Public Prosecutions [2004] EWHC 183 (Admin) in which May LJ explained that s. 28(1)(a) was concerned with “demonstrated” racial hostility “not so much to indicate the offender’s state of mind as to prove what he did or said so as to demonstrate racial hostility towards the victim” (para. 13) whereas 28(1)(b) required proof that the substantive offence was “wholly or partly” motivated by racial hostility.  
26.	This analysis was adopted in Director of Public Prosecutions v. M [2004] 1 WLR 2758, [2004] EWHC 1453 (Admin) which concerned an argument over payment for food with the Turkish chef of a takeaway kebab shop during the course of which the defendant used the words “bloody foreigners” and pushed the shop window causing it to crack.  The justices doubted whether the word “foreigners” constituted a racial group but, more significantly for this case,  found that the actions were the result of annoyance following the dispute over payment so that there was no case to answer in relation to racially aggravated criminal damage because  hostility based on race had not been demonstrated.  Reversing the decision, the Divisional Court held that the justices had ignored s. 28(3) which demonstrated that it was immaterial whether the hostility was based to any extent on any other factor; it was clear that the adjective “bloody” governing the words “foreigners” was capable of demonstrating hostility based on presumed membership of a group.  Auld LJ concluded (at para. 34) that the justices:
“…slipped from demonstrated racial hostility under s. 28(1)(a) on which the Director relied, to motivated racial hostility under s. 28(1)(b) on which he did not.  That they did so, perhaps by a process of unconscious elision, is evident from their incorporation of the section 28(1)(b) test in the second clause of their first question to the court, namely whether they were correct to decide that the words “bloody foreigners” were not capable of “showing that the offence was motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.”
27.	It is not, perhaps, irrelevant, that in his explanation to the jury, the judge fell into precisely the same error.  The word “demonstrated” simply does not appear in his explanation; the word “motivated” does.  Furthermore, the judge never sought to elucidate what s. 28(1)(a) of the 1998 Act meant.   
28.	Mr Silas Reid (who appears for the respondent with Mr Richard Doman who appeared at the Crown Court) submits that this authority has been overtaken by the decision of the House of Lords in R v. Rogers [2007] AC 62.  That case concerned another kebab shop and the same words (“bloody foreigners”) in the context of racially aggravated abusive or insulting words or behaviour.  The ratio of the case is that “foreigners” did constitute a racial group although Baroness Hale confirms (at paragraph 6) that s. 28(1)(a) is concerned “with outward manifestation of racial… hostility” and s. 28(1)(b) with “the inner motivation of the offender”.  In our judgment, it is difficult to see how it can be suggested that repeated angry references to a Nigerian as a ‘monkey’ or ‘black monkey’ do not generate a prima facie case of an outward manifestation of racial hostility and Mr Reid concedes that the words certainly are such as one would expect to be used by a racist.  
29.	Mr Reid suggests, however, that attention should be paid to paragraph 17 of the speech of Baroness Hale when she refers to the concern expressed in the Court of Appeal as to the width of the meaning of ‘racial group’ giving rise to a danger that aggravated offences may be brought where vulgar abuse included racial epithets that did not, when all the relevant circumstances are considered, indicate hostility to the race in question.  She observed, entirely non-controversially, that if that is what the evidence suggested, the normal criteria for bringing proceedings would not be met.  We agree: context is everything but, in our judgment, in this case, it was plain that there was material on which the jury could properly conclude that these circumstances went beyond vulgar abuse into an outward manifestation of racial hostility.  Neither do we accept Mr Reid’s argument that “based on membership” is synonymous to “motivated by membership” which, following the language of Baroness Hale, is to confuse outward manifestation and inward motivation. 
30.	That this conclusion is clear is also confirmed by the approach of the Divisional Court in Johnson v. Director of Public Prosecutions [2008] EWHC 509 (Admin) which concerns words spoken angrily and aggressively by a black male to two white parking attendants “leave us alone, you’re always picking on us [ie the black community]” and “get up Dore to your white uncles and aunties [meaning leave the area and go to white areas]”, “this is our patch not yours [taken as a reference to that being a black area]”. In a judgment with which Swift J agreed, Richards LJ said:
“The circumstances were such, in my judgment, as to make it reasonably open to the Crown Court to find that the appellant demonstrated racial hostility (to use a shorthand). The language used and the court’s findings as to the meaning of the words used make clear that the appellant was presenting the matter in racial terms by reference to colour. He was telling the parking attendants to leave the black community alone, to get out of the black area where they were and to go to white areas, and he was telling all this as a black person addressing two white people. The words were capable of demonstrating racial hostility. Whether the appellant was in fact demonstrating racial hostility by the use of those words, rather than simply demonstrating hostility towards the two parking attendants based on their job as parking attendants, was a question of fact for the Crown Court. But there was an entirely adequate evidential basis for the finding that was made as to racial hostility.”
31.	In the same way, whether the repeated references to OA as a ‘monkey’ or ‘black monkey’ constituted a demonstration of hostility based on race (whether or not that hostility was also based, to any extent, on any other factor) or mere vulgar abuse unconnected with hostility based on race, was eminently a matter of fact for the jury to consider on all the evidence. The judge, on the other hand, demonstrated his confusion of language and did not apply the correct test.  When giving judgment on the costs he sought to explain the error of the CPS in their charging decision by saying that what mattered was what was said and its effect “not why it was said”: in fact the charge focussed precisely on what was said (outward demonstration of hostility) and not why it was said (inward motivation).  The judge was not simply making a decision that was “slightly tenuous” (to use his own words); he was quite wrong to conclude that because the jury could not exclude vulgar abuse as a factor, there was no case to answer.  
32.	We add that had the judge not manifested from the outset an intention or at least predisposition to find no case to answer, he may have reflected somewhat more on the law and considered rather more carefully Mr McNeill’s  entirely accurate submission; had he done so, this error  might have been avoided.  We shall return to the judge’s focus on costs but it is equally worth pointing out that if he had not fallen into error, the substantial waste of resources on this appeal, to say nothing of any future costs, would also have been avoided.
The Consequences
33.	Having reached a conclusion on the question whether there was a case to answer, the judge failed to have regard to the effect of the Crown’s intimation of an intention to appeal that ruling.  In order to examine what should have happened and the effect of what did, in fact, happen, it is necessary to start with the statute and consider the process step by step. By doing so, we hope that, in future cases when the question of possible appeal by the Crown against terminating rulings arise, some of the errors which manifested themselves in this case can be avoided.
34.	The initiating provisions of s. 58 of the 2003 Act provide as follows:
“(1) This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.
(2) The prosecution may appeal in respect of the ruling in accordance with this section. 
(3) The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4). 
(4) The prosecution may not appeal in respect of the ruling unless—
(a) following the making of the ruling, it—
(i) informs the court that it intends to appeal, …. 
(8) The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled. 
(9) Those conditions are— 
(a) that leave to appeal to the Court of Appeal is not obtained, and 
(b) that the appeal is abandoned before it is determined by the Court of Appeal. 
35.	There is no doubt (and the contrary is not suggested) that appropriate notice of an intention to appeal was given by Mr McNeill at an applicable time.  Before considering the effect of that notice on the ruling given by the judge, the question should have arisen as to what should happen to the continuing trial.  In that regard, s. 59 of the 2003 Act deals with expedition in these terms: 
“(1) Where the prosecution informs the court in accordance with section 58(4) that it intends to appeal, the judge must decide whether or not the appeal should be expedited. 
(2) If the judge decides that the appeal should be expedited, he may order an adjournment. 
(3) If the judge decides that the appeal should not be expedited, he may— 
(a) order an adjournment, or 
(b) discharge the jury (if one has been sworn). 
(4) If he decides that the appeal should be expedited, he or the Court of Appeal may subsequently reverse that decision and, if it is reversed, the judge may act as mentioned in subsection (3)(a) or (b).
36.	This provision is not discretionary; it places a mandatory obligation on the judge to consider the issue of expedition specifically because a decision has to be made (which in a long trial may have serious repercussions) whether to await any decision of the Court of Appeal or to abandon the trial with the risk that if the appeal succeeds, it will have to start again.  What the judge had no power to do was simply to carry on regardless.  Neither is this unimportant in this case because the length of the trial (which had started at the end of the preceding day) would have inevitably meant the discharge of the jury, so generating a re-trial if an appeal was successful.  Furthermore, proper consideration given to the second count would (or, at least, should) have caused all to realise that this count should never have been added to the indictment in the first place because it is summary only and not listed in s. 40(3) of the Criminal Justice Act 1988 as one of those summary offences which can be joined in an indictment within that provision.  Section 31(6) of the Crime and Disorder Act 1998 specifically provides that on a trial on indictment for the racially aggravated offence contained within count 1, the jury may find a defendant not guilty of the offence charged but guilty of the basic offence (i.e. ‘count 2’).
37.	Having failed to consider expedition, the judge did not consider the further provisions as to the impact of the expressed intention to appeal.  Reverting to s. 58 of the 2003 Act, its terms are clear:   
(10) If the prosecution informs the court in accordance with subsection (4) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.  
(11) If and to the extent that a ruling has no effect in accordance with this section— 
(a) any consequences of the ruling are also to have no effect,
(b) the judge may not take any steps in consequence of the ruling, and 
(c) if he does so, any such steps are also to have no effect. …
38.	Thus, the judge had no business directing the jury to acquit of count 1and if he had considered s. 58 of the 2003 Act, he would have realised that it was not open to him to do so and that the jury’s acceptance of his direction would be of no effect.  This would have given him a second opportunity to consider what should happen to count 2 and, again, he then should have appreciated that if an appeal against his ruling was unsuccessful, the crown would be left with what was a summary only offence so that the entire proceedings would fall away.  On the other hand, if he was wrong, the position would then have to be considered afresh.
39.	Mr Reid argues that, whether count 2 was properly joined or not, there is no question of that offence being the subject of the appeal and, thus, it was open to the judge to continue the trial (particularly as he intended to invite the jury to exercise their power to stop it) and that, having done so, a valid verdict was entered.  The basis of this argument is s. 60(2) of the 2003 Act which provides:    
“Proceedings may be continued in respect of any offence which is not the subject of the appeal.”

40.	On the face of it, therefore, it is necessary to decide whether the continuation of the trial on count 2 is a consequence of the ruling on count 1 (and, by reason of s. 58(11)(c) of the 2003 Act is therefore of no effect) or whether the it is the trial of a separate offence which is unaffected by the appeal.  In our judgment, at least one answer is to be found in s. 31(6) of the Crime and Disorder Act 1998 (to which we have referred above) which deals with racially aggravated public order offences and is in these terms:
“If, on the trial on indictment of a person charged with an offence falling within subsection (1)(a) or (b) above [which include the offence of racially aggravated fear or provocation], the jury find him not guilty of the offence charged, they may find him guilty of the basic offence mentioned in that provision.” 
41.	We recognise that this provision is intended to permit the jury to convict of what is a summary offence not triable on indictment but, in our judgment, the fact that this summary offence was improperly included within the indictment is not to the point.  It is clear that a jury can only consider the lesser offence after acquitting of the greater racially aggravated offence. Whether or not the Crown could have accepted a plea to the alternative, in the context of these circumstances it was necessarily antecedent to any decision on the public order offence contained within count 2 (whether included within count 1 or wrongly charged separately) that there was an acquittal on count 1.  In this case, that acquittal is of no effect and the judge was not entitled to take any step as a consequence of that ruling (including the step of advising the jury of their right to stop the case or permitting them to enter a verdict if they wished to do so).  Thus, this acquittal is also of no effect.  It follows that the Respondent cannot be assisted by the submissions made to us on the basis of s. 60(2) of the 2003 Act.
42.	In his skeleton argument, Mr Reid also advanced the argument that this appeal was an abuse of process because, in the hearing of the respondent, in answer to a question posed by the judge about what would happen “if the jury slings out count 2”, Mr McNeill responded that having considered it, he would have thought that no appeal would be pursued.  Rightly, Mr Reid did not pursue that argument orally.  Both Mr McNeill and the CPS were entitled to consider it and the concession was wrong in law.  There is no question of abuse of the process of this court. 
43.	That brings us to the order for costs.  Regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 permits the court to order a party to pay costs to the other party where satisfied that costs have been incurred in respect of the proceedings as a result of an unnecessary or improper act or omission.  The judge exercised this power observing that “the pursuit of this case in a way that made it inevitable that it was going to come to the Crown Court” which clearly meant that he found it to be unnecessary or improper to charge the racially aggravated form of the offence.  Given that this conclusion is necessarily dependent and follows as a consequence (albeit not an inevitable consequence) of his decision that there was no case to answer, s. 58(11) of the 2003 Act also bites to render this decision of no effect.
44.	In the circumstances, pursuant to s 67 of the 2003 Act, we reverse each of the decisions made by Judge Shorrock in relation to his ruling that there was no case to answer on the racially aggravated offence, his decision to permit the jury to return a verdict in relation to the alternative offence and his decision in relation to costs.  All are of no effect.
45.	Having reversed the ruling of the judge, in relation to each offence, this court must do any of the following (as prescribed by s. 61(4) and 61(8) of the 2003 Act):
“(a) order that proceedings for that offence may be resumed in the Crown Court,
(b) order that a fresh trial may take place in the Crown Court for that offence,
(c) order that the defendant in relation to that offence be acquitted of that offence. 
46.	There is no question of resuming a trial in this case but s. 61(5) prohibits making an order of acquittal “unless it considers the defendant could not receive a fair trial”.  Although Mr Reid refers to the hardship that the respondent could suffer by having to undergo a second trial, he does not submit that a fair trial would be in jeopardy.  Although we anticipate that the first step in any retrial will be to quash count 2, we do order a retrial.
Wider Issues affecting Criminal Justice
47.	The foregoing is sufficient to dispose of the narrow issues raised by this appeal but this case goes far wider than the specific allegation made against the respondent and raises an issue of law and practice in relation to inviting a jury to stop a case and, even more serious, issues of real importance to the administration of criminal justice in connection with the boundary between the role of the CPS and the judiciary in the prosecution process and the relevance of arguments as to resources both of which clearly concerned this judge.  Those issues having been ventilated both in the skeleton arguments and orally, we consider it appropriate to deal with them.
Inviting the Jury to Stop the Case
48.	After OA had given evidence, Judge Shorrock candidly observed that he was “struggling to find a way to withdraw count 2” and made it clear that he would remind the jury that, if they wished to do so, they could acquit without more.  That is what he did and his explanation focussed on his approach to the evidence.  In the light of what he had said throughout the case, however, it would not be surprising if an observer who had heard his various exchanges concluded that he did so, at least in part, because he thought the case was “waste [of a] judge and jury’s time”, “rubbish”, and that his money as a taxpayer was “being wasted on rubbish like this”, rather than for any other reason.
49.	Although the common law recognised the right of a jury to acquit an accused at any time after the close of the prosecution case, modern authorities disapprove of the practice.  In R v. Falconer-Atlee (1973) 58 Cr. App. R. 348, it was said by Roskill LJ to be wrong for a judge who was not prepared to stop the case himself to cast that responsibility on to the jury.  Similar remarks were made in R v. Kemp [1995] 1 Cr. App. R. 151 rejecting criticisms of Falconer-Atlee articulated in the 1993 edition of Archbold.  Kennedy LJ also expressed the court’s disapproval of the practice in R v. Speechley [2004] EWCA Crim 3067 and all the authorities were reviewed in R v. C & ors [2007] EWCA Crim 854 in which the court (per Gage LJ) considered it strongly arguable that the practice could not survive Article 6.  He identified the dangers involved in a judge telling a jury that it has a right to stop a case in a lengthy passage (at para. 49) which is worthy of repetition:
“First and foremost this practice involves the jury in making a decision which will affect the future conduct of the trial without, as happened in this case, the benefit of speeches from all counsel or any legal directions from the judge. Secondly, the nature of the decision which the jury is asked to make is to decide whether or not the prosecution witnesses may be capable of belief. In other words the jury must reach a provisional conclusion. However, there is a risk that they may go further and decide at that stage that the witnesses are not just capable of belief but they are indeed telling the truth. Such a provisional conclusion, once reached, maybe very difficult to displace. Thirdly, as was explained in Kemp, juries are often keen to register independence and may react against what might be perceived to be pressure from judge to acquit a defendant. Fourthly, even though a judge may strive to avoid inviting a jury to acquit, a practice which has always met with disapproval, it may be very difficult to avoid giving that impression rather than simply informing a jury of its right to acquit, the latter conforming with the old practice before it also was disapproved. As the court said in Kemp “It may not be always very easy to distinguish between an invitation to acquit and a mere intimation of a right to stop the case”. Fifthly, this practice is inherently more dangerous when a number of defendants are involved and the factual evidence is complex. Sixthly, it is unfair to the prosecution when it is given no opportunity to address either the judge or the jury and correct a mistaken impression of its case. The same applies to defendants, albeit in all such cases, the presumption will be that the judge has only adopted this procedure in order to obtain, more quickly, verdicts favourable to the defence. Seventhly, there may be particular dangers when as in this case the defence are contemplating not calling any evidence. Eighthly, since the coming into force of the provisions of s.58 of the Criminal Justice Act 2003 the prosecution has a right of appeal against a determinative ruling of a judge but will have no right of appeal against an acquittal by a jury following a judge informing them that they have a right to stop the case.”
50.	There is also another reason which bites if the jury should stop the case.  Although arguments have always been articulated as on the basis that fairness must be visited both on the defence and the prosecution, fairness to the prosecution is now well recognised as requiring a proper focus upon the legitimate rights and interests of victims and witnesses.  Once there is a case to answer, they are entitled to know that the jury has heard the case through to its conclusion culminating in a fair analysis of the issues from the judge.  The few words offering the jury the opportunity to stop the case do not provide this and can only be approached by the jury on the basis of the broadest of broad brushes.  In this case, the judge allowed the jury “two or three minutes” with the clearest indication to acquit (“you may think ... that you are not going to ever be in a position where you could be sure of his guilt with regard to uttering threats that made the victim believe that he was likely to be the victim of violence”).  In our judgment, he was wrong to do so: if one identifies OA or the witness BP as the observer mentioned in paragraph 48 above, it would not be surprising if they felt that, insofar as the judge had ruled that there was a case to be answered, he had not provided a real opportunity for their evidence properly to be considered.
51.	This is not the case in which to go further than the authorities have hitherto decided although we do echo and endorse the views expressed by this court in the cases set out above.  Without concluding that the judge so acted in this case, we add only that it would be to fall into serious error to invite the jury to take such a step because of a perception that the case was not worthy of the expense of jury trial notwithstanding that Parliament has legislated for just such a course.  To do so would only serve to encourage those charged with the least serious either way offences to elect trial in the hope of such a favourable outcome. 
The Duties of the Crown Prosecution Service 
52.	An important aspect of this case is its manifestation of the way in which Judge Shorrock perceived the CPS and the exercise of its statutory function.  Neither is it the first occasion on which he has expressed his displeasure at the way in which the CPS has discharged its duty.  In R v. C, M and H [2009] EWCA Crim 2614, at an adjourned plea and case management hearing, when the CPS had failed to produce and serve CCTV evidence, Judge Shorrock demanded that the trial begin there and then; counsel was obliged to offer no evidence (not unsurprisingly, none then being available) and the judge also refused to allow any adjournment for consideration to be given to an appeal.  The CPS thereafter failed to comply with s.58(8) of the 2003 Act and this court determined that there was no jurisdiction to hear the appeal.  Albeit obiter, the court went on to conclude, however, that the judge’s approach was unreasonable as was his refusal to allow any adjournment.  Furthermore, on the very same day that the judge was dealing with the present trial, this court was hearing argument on and then reversed Judge Shorrock’s decisions in three cases in which he had quashed indictments in prosecutions which he did not believe ought to have been commenced by the CPS so as to bring them to the Crown Court: see R v. FB, R v. AB, R v. JC [2010] EWCA Crim 1857.
53.	It was sufficient in the latter trilogy of cases for this court to conclude that the judge had no power to take the course that he did.  This case, on top of those, demonstrates that it is appropriate to look more fully at the respective responsibilities of the CPS and the judiciary.  In that regard, the starting point is the Prosecution of Offences Act 1985 (“the 1985 Act”).  Thus, it is the duty of Crown Prosecutors (and others with appropriate legal qualification) employed by the CPS to discharge the powers of the Director of Public Prosecutions as to the institution and conduct of criminal proceedings: see ss. 1(6), 3(2) and 5 of the 1985 Act.  Further, in his annual report to the Attorney General, to be laid before parliament, the DPP shall set out the provisions of the Code which is mandated by s. 10(1) of the 1985 Act in these terms:
“(1) The Director shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them —
(a) in determining, in any case—
(i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or 
(ii) what charges should be preferred; and 
(b) in considering, in any case, representations to be made by them to any magistrates’ court about the mode of trial suitable for that case.
54.	Underpinning that Code is the twin test that prosecutors must be satisfied both that there is sufficient evidence to provide a realistic prospect of conviction and that prosecution is required in the public interest.  Standing to support the considered approach to these issues is a considerable body of guidance published by the CPS on its policies in a wide number of areas including racist and religious crime.  It is not necessary to detail that policy in relation to this case: it is sufficient simply to say that it exists and that the responsibility for the exercise of the discretion which it provides falls to the DPP and, through him, the CPS.  
55.	The judiciary does not superintend the performance of this duty. Both the prosecution and the defence are entitled to a fair trial conducted in accordance with the law, with judges exercising case management responsibilities bearing fully in mind the overriding objective to deal with cases justly (which includes acquitting the innocent and convicting the guilty and dealing with the prosecution and defence fairly: see paragraphs 1.1(1) and 2(a) and (b) Criminal Procedure Rules 2010).
56.	Take this case.  A public servant working in a Jobcentre, with experience of having been abused and with knowledge of stabbing incidents having taken place at Jobcentres, complains that a man has sworn at him, threatened him with stabbing and racially abused him.  His evidence of the racial abuse is supported by another public servant and (to use the judge’s phrase) the CCTV is not inconsistent with this evidence.  The CPS decides to charge the offence of racially aggravated fear or provocation of violence in respect of which (as we have found) there is a case to answer.  That charge, although entirely suitable for summary trial, carries with it the right in the respondent, contained within the legislation, to elect trial by jury: he does so and so the case eventually comes on for trial.
57.	To describe the case as “rubbish”, as the judge did both before and after the trial is improperly to demean the case and the witnesses who support it.  To reject the views of judges of this court and the House of Lords as “the theory behind the matter” and require the CPS to “leave aside the academic debate” is to reject the basis upon which the court is required to conduct any trial in accordance with the law.  Further, it was not for him to express a view that a Woolwich jury would not convict (on which see R v. Chairman of Middlesex Quarter Sessions ex parte D.P.P. [1952] 2 QB 758 per Lord Goddard CJ at 767).  Finally, to concentrate upon his perception of common sense and his views of the response of a Woolwich jury, so as to suggest re-defining the test which the CPS should apply to cases in Woolwich is to go far beyond his legitimate remit.  
58.	It goes further.  The judge also suggested (see paragraph 20 above) that what should have happened was that the case should have been pursued in such a way as only permitted summary trial.  In other words, the alleged demonstration of racial hostility should have been ignored in order to deprive the defendant of his right to elect trial by jury.  In this particular case, where no summary only alternative which included the element of racial aggravation existed, that suggests that the CPS should have indulged in deliberate undercharging for the oblique motive of avoiding a Crown Court trial.  Further, the judge’s views were underlined by a distinct threat in relation to costs both at the beginning of the case and after the first witness (with the further threat “I am going to make this as expensive ... as I can”).  Then, having intimated that he would allow 7 days for written representations as to costs, the judge immediately made the order “to encourage those who make the decision to prosecute in such cases to be more realistic and to deal with more cases at the lower court” which is not a justification which can be supported.  Finally, in a manner that can only be described as off-hand, if not rude, the judge refused to consider careful and restrained submissions when they were made in accordance with the permission that he had granted.  
59.	None of this behaviour falls within the appropriate exercise of the judge’s authority to conduct cases in accordance with the law, following the overriding objectives identified in the CPR.  Given that the judge was wrong as to the proper interpretation of the law and the CPS were right, we do not lengthen this judgment by analysing the circumstances in which it is appropriate to order the CPS to pay costs; suffice to say, they did not arise here.
60.	We must make it clear that we do not suggest that a judge has no right to express his views about a proposed prosecution or about the way in which the CPS should exercise the discretion vested in it by Parliament.  There is a long tradition of judges doing just that and of the CPS reconsidering the position when they do; in our experience, both at the bar and on the bench, proper and appropriate respect has always been paid to any expression of judicial views.  Judge Shorrock, however, went beyond moderately expressing his views.  He sought, quite wrongly, to impose them in a way that paid no attention to the fact that it is the CPS in which the statutory discretion is vested.  He did so because of his view about the use of resources and it is to that topic that we now turn.
Resources
61.	Underpinning all Judge Shorrock’s concerns in this and other cases have been the limited resources that are available and the ever increasing burden of the work in the Crown Court.  As can be demonstrated in this case, the concern about the burden of work and the length of time that straight forward cases are taking to come on for trial is entirely justified.  Thus, this allegation dates back to 8 September 2008.  The respondent was arrested on 20 February 2009 (the delay being caused, as we understand it, for reasons connected with the recovery of the CCTV).  The respondent elected trial and, because of the state of the lists, this short matter (which would have taken a day although it only started in the very late afternoon of the first day) did not commence until 12 July 2010.  Custody time limits mean that priority must be given to custody cases and, with increasing financial pressure on the courts, the backlog is likely to increase.  Resources may, indeed, need to be focussed differently. 
62.	It is important, however, that judges do not overstep the mark.  Of course, every judge has a duty to ensure that trials are conducted as efficiently and expeditiously as possible.  The Criminal Procedure Rules exist for that purpose and there are ample powers available to the court to do so.  That duty does not, however, extend, to challenging the principles of law and criminal process laid down by Parliament.  To make this point, we need do no more than repeat the remarks of this court in  R v. FB, R v. AB, R v. JC (supra) which I expressed in these terms (at para. 34):
“We recognise these [ever increasing financial] pressures only too well and recognise also the need for every court to be vigilant so as to ensure that court resources are used as efficiently, as expeditiously and as effectively as possible. It is not, however, for judges to short circuit or ignore well established principles of law in the name of efficiency or to seek to prevent prosecutions properly brought to the Crown Court whether by election for trial or otherwise, from being pursued. Whether steps should be taken to limit the extent to which any particular type of case should be tried by jury is for Parliament.”
63.	There is one final point to be made.  Having described the prosecution as “a scandalous waste of money” in the presence of the jury, when later challenging the CPS lawyer who attended at his request, the judge sought to use the jury’s apparent agreement with his view as support for the propositions that the case was bound to fail and a waste of resource: see paragraph 17 above.  It is not in the slightest bit surprising that they should have that view.  First, they had heard the judge (wrongly) reject an important part of the Crown’s case and describe it as he did.  Secondly, the jury would almost inevitably have attended for jury service expecting (perhaps because of what they had seen on television or for other reasons) that they were giving up their time to try a case of greater gravity than this.  On the other hand, it was the judge’s task to explain that Parliament had specifically provided that this type of case could be tried by a jury and that, however lacking in gravity they perceived it to be, it was important to those involved and to the public.  Thus, it deserved their respect and their full attention; that, after all, was the effect of the oath that they had taken.
Conclusion
64.	Having reversed the decisions of the judge and found no reason why the respondent could not receive a fair trial, we declare the acquittals of no effect and order that a fresh trial be conducted in the Crown Court at Woolwich before a different judge, although as we have said, we have no doubt that count 2 will be quickly quashed as in excess of jurisdiction.   Whether the CPS will review their decisions before commencing that trial, in the light of all the evidence and what has happened, is a matter for them.  Whatever the result of any such decision or any trial, however, it will be a demonstration of the system operating appropriately.